{ "id": 1604786, "name": "Jack AVANCE, Jr., Robert Shelby, and Carmon Wigley v. Virginia R. RICHARDS", "name_abbreviation": "Avance v. Richards", "decision_date": "1998-01-15", "docket_number": "97-134", "first_page": "32", "last_page": "41", "citations": [ { "type": "official", "cite": "331 Ark. 32" }, { "type": "parallel", "cite": "959 S.W.2d 396" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "293 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869686 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "33" }, { "page": "155", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/293/0032-01" ] }, { "cite": "169 A.L.R. 9", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "268 Ark. 1009", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715438 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/1009-01" ] }, { "cite": "263 Ark. 467", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672713 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0467-01" ] }, { "cite": "235 Ark. 578", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684847 ], "weight": 8, "year": 1962, "pin_cites": [ { "page": "583" }, { "page": "553" }, { "page": "586" }, { "page": "555" }, { "page": "584" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ark/235/0578-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-24-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "224 Ark. 116", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646601 ], "weight": 3, "year": 1954, "opinion_index": 0, "case_paths": [ "/ark/224/0116-01" ] }, { "cite": "260 Ark. 771", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616818 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "774" }, { "page": "944" } ], "opinion_index": 0, "case_paths": [ "/ark/260/0771-01" ] }, { "cite": "294 Ark. 515", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895794 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0515-01" ] }, { "cite": "309 Ark. 604", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906022 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0604-01" ] }, { "cite": "303 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882718 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0125-01" ] }, { "cite": "325 Ark. 326", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369371 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0326-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-32-1005", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 734, "char_count": 16543, "ocr_confidence": 0.744, "pagerank": { "raw": 9.021991259428e-08, "percentile": 0.5038048550320887 }, "sha256": "b0e95a1ee6f506eb25d0fd003468786a7d5e42fdd3e01cf76cc18ea381857ca3", "simhash": "1:d062c8562c06d5a1", "word_count": 2869 }, "last_updated": "2023-07-14T15:04:18.346145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jack AVANCE, Jr., Robert Shelby, and Carmon Wigley v. Virginia R. RICHARDS" ], "opinions": [ { "text": "David Newbern, Justice.\nSmith and Etta Jordan, husband and wife, each wrote a holographic will on July 8, 1976. The documents contained common provisions leaving property to the survivor. Ms. Jordan survived Mr. Jordan. In 1990, Ms. Jordan placed money in a joint checking account with right of survivor-ship. The other person named as depositor was appellee Virginia Richards. At the time of Ms. Jordan\u2019s death in 1995, the account contained approximately $121,700. Ms. Richards, who served as executrix of a later will executed by Ms. Jordan, removed the money from the account after being advised by an attorney that the money was hers.\nThe question we must answer is whether there was a contract between the Jordans that was breached when Ms. Jordan effectively removed money from her estate, after Mr. Jordan\u2019s death, by establishing the survivorship account. The Chancellor held that Ark. Code Ann. \u00a7 23-32-1005 (Repl. 1994) conclusively placed ownership of the money in Ms. Richards as the surviving person on the account. We affirm the result reached by the Chancellor but for the reason that there was insufficient evidence of a contract binding Ms. Jordan to leave the money in question to Mr. Jordan\u2019s beneficiaries in accordance with her 1976 will.\nMr. Jordan\u2019s will contained this provision:\nI do hereby give, devise and bequeath all my estate and property which I may own at my death real personal and mixed and wheresoever situated of every kind sort and description to my wife Etta Jordan. She may dispose of the personal property at her decision but the real estate cannot be sold, bartered or disposed of in any manner without the signature of my heirs namely - Hester Avance Junior Avance Carmen Wigley, Robert Shelby and Donald Sanders and they get their share of the property (50%) at the time of transaction to be divided as other monies and property which will be described in paragraph marked (Fourth). The other half (50%) will go to my wife if living and to her heirs if she predecease me.\nThe document written by Ms. Jordan contained a provision that was virtually the same as Mr. Jordan\u2019s but making him the beneficiary and providing for distribution of her fifty percent to her sister and nieces and nephews. This provision also appeared in Ms. Jordan\u2019s document: \u201cAt his (Smith\u2019s) death it is my wish that all of our estate be divided \u2014 50% of our estate, property and monies will go to my heirs and 50% will go to my husband\u2019s (Smith Jordan\u2019s) heirs.\u201d The 1976 document signed by Ms. Jordan also provided that if Mr. Jordan survived her he could dispose of personal property \u201cat his own decision.\u201d\nOn January 26, 1984, Ms. Jordan executed a second typewritten will that purported to revoke all prior wills. The 1984 will incorporated the \u201c50-50\u201d disposition featured in the Jordans\u2019 1976 wills:\nI further recognize that it has been the desire of my deceased husband and myself that at the death of the survivor of the two of us, that the Estate of the survivor should be divided one-half to his side of the family and one-half to my side of the family. In the past we have both had Wills to this effect. It is my desire that in this now my last Will, these intentions be carried out.\nAttorney Zed Gant prepared Ms. Jordan\u2019s 1984 will and retained the original 1976 documents in his file. The estate of Ms. Jordan, not including the money from the joint account that passed to Ms. Richards as the surviving party to the account, was valued in documents submitted in connection with Ms. Jordan\u2019s 1984 will at $308,511.19. That remaining property presumably was distributed among Mr. and Ms. Jordan\u2019s beneficiaries in accordance with the 1984 will.\nNone of these wills, or any other documents executed by the Jordans, expressly referred to a \u201ccontract\u201d not to revoke a will.\nOn July 13, 1990, Ms. Jordan changed the status of the checking account she had opened at the Bank of Mulberry on March 12, 1981. Ms. Jordan added Ms. Richards\u2019s name to the account and changed it from an \u201cindividual\u201d account to a joint account \u201cwith survivorship.\u201d Both Ms. Jordan and Ms. Richards signed the signature card. The account agreement explained that the funds would pass to the survivor upon the death of the other party.\nMs. Richards contributed no funds to the account and conceded in a deposition that Ms. Jordan added her name to the account so that she would be able to pay Ms. Jordan\u2019s expenses. She was unaware of her right of survivorship in the account until after Ms. Jordan\u2019s death.\nMs. Jordan, who had been living with Ms. Richards, died on November 6, 1995. Ms. Richards petitioned the Probate Court for probate of the 1984 will on November 28, 1995. She filed an inventory on March 15, 1996, and did not list the $121,700 in the checking account. As Ms. Richards indicated in her deposition, Paul Gant, an attorney for Ms. Jordan\u2019s estate (who also is the son of Zed Gant, the attorney who prepared Ms. Jordan\u2019s 1984 will), advised Ms. Richards that the funds passed directly to her and were not part of Ms. Jordan\u2019s estate.\nIn their action against Ms. Richards, Mr. Jordan\u2019s heirs claimed that Etta Jordan breached her agreement with Smith Jordan not to revoke her will and that they were entitled to specific performance of the agreement and thus to have the constructive trust imposed. They sought an order directing Ms. Richards to transfer the money and any proceeds from it into the Trial Court\u2019s registry and ultimately to Ms. Jordan\u2019s estate for distribution in accordance with the 1976 or 1984 will of Ms. Jordan.\nMs. Richards moved for summary judgment and asserted (1) her right to the funds from the account on the basis of \u00a7 23-32-1005 regardless of any contract embodied in the 1976 wills; and (2) alternatively, there was no valid contract in the first instance that limited Ms. Jordan\u2019s ability to dispose of some of her property by placing it in a joint and survivor account with Ms. Richards.\nMr. Jordan\u2019s heirs responded with their own motion for summary judgment and asserted that the 1976 wills implicitly created the contract not to revoke. They also relied on Ms. Jordan\u2019s 1984 will and affidavits of persons who said they had heard statements by Mr. and Ms. Jordan concerning their plan to divide their property equally between the two sets of heirs.\nThe affidavit of Robert Shelby, Mr. Jordan\u2019s nephew, was to the effect that he had a serious conversation with Mr. Jordan 'shortly before Mr. Jordan\u2019s death in which Mr. Jordan expressed his wish that, at Ms. Jordan\u2019s death, their property be divided on the 50-50 basis expressed in his will. Mr. Jordan abjured Mr. Shelby to see to it that it went as he wished. Apparently nothing was said about a contract.\nThe affidavit of Edwina Brooks, wife of a nephew of Ms. Jordan, stated that Ms. Jordan had told her about the 50-50 distribution plan and that she and Mr. Jordan had agreed \u201cby their wills\u201d that half their estate would go to his side of the family and that half would go to her side of the family. An affidavit by Roberta Benham, a niece of Ms. Jordan, reported that Ms. Jordan had told her that she and her deceased husband were \u201ca company\u201d and that everyone would share and share alike.\nThe Chancellor granted Ms. Richards\u2019s motion for summary judgment relying on \u00a7 23-32-1005 and this Court\u2019s holdings in Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996), and Hall v. Superior Federal Bank, 303 Ark. 125, 794 S.W.2d 611 (1990). He stated he was precluded from considering the arguments that the Jordans had entered into a contract not to revoke their wills and that Ms. Jordan\u2019s possible intent that Ms. Richards inherit the money in the checking account was irrelevant. The Chancellor found there was no genuine issue of material fact \u201cthat the money which was in the account on the date [of] Decedent\u2019s death became the property of Respondent [Ms. Richards] as the joint tenant by operation of law. Accordingly, Respondent\u2019s Motion for Summary Judgment is granted.\u201d\nIn the Hall case, we held that \u00a7 23-32-1005 made the creation of a joint bank account with right of survivorship \u201cconclusive evidence\u201d of the parties\u2019 intent that the account was to pass to the survivor upon the death of the other and that it was error for the Chancellor to have considered other evidence of the decedent\u2019s intent.\nIn the Nichols case, we reaffirmed the Hall decision and held that the statute was controlling of the distribution of the joint account with right of survivorship. There, the decedent had declared her intent in her will to dispose of her estate equally among her three daughters. Only one of the daughters\u2019 names had been placed on several joint accounts with right of survivor-ship. We held that the statute made the establishment of the joint account with right of survivorship conclusive of the deceased depositor\u2019s intent. While the case involved a conflict between the terms of a will and the terms of the statute, neither it nor the Hall decision involved a contract not to revoke.\nThe entire argument of Mr. Jordan\u2019s heirs rests upon their contention that there was a contract not to revoke that has been breached by Etta Jordan. The Chancellor by-passed the issue of whether there was such a contract and, in effect, held that it did not matter in view of the statute and our interpretation of it. We are unwilling, based on the facts before us, to hold that \u00a7 23-32-1005 precludes the establishment of a constructive trust when a contract not to revoke a will has been properly established and the property in question has been transferred in violation of such a contract. Again, the question here is whether the existence of such a contract has been proven. Both parties, during oral argument, made it clear that we should decide the issue on its merits.\nWe review chancery decisions de novo, and when the record is sufficiently developed to enable us to do so, we decide the issues presented without remand. Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992); Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988). In addition to Ms. Jordan\u2019s 1984 will, we have before us the 1976 documents as well as the affidavits mentioned above. We regard the record as sufficiently developed to hold that Ms. Richards must prevail.\nA \u201ccontract for reciprocal wills need not be expressed in the wills, but may arise by implication from circumstances which make it clear that the parties had such wills in mind and that they both agreed to the terms of the testamentary disposition made therein.\u201d Iwerson v. Dushek, 260 Ark. 771, 774, 543 S.W.2d 942, 944 (1976), citing Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954). In the case of Mr. Jordan\u2019s 1976 will, the \u201ctestamentary disposition therein\u201d permitted Ms. Jordan, if she survived him, to do as she pleased with personal property. Later there was the provision for the division of real estate among certain persons \u201cto be divided as other monies and property. ...\u201d In the case of Ms. Jordan\u2019s 1976 will, there was an inconsistency because she wrote that Mr. Jordan could dispose of personalty at his \u201cown decision\u201d but expressed her wish that \u201cmonies\u201d be divided equally between the heirs of each side of the family. While it might be said that the provisions concerning real property were \u201cmutual,\u201d there is doubt with respect to personalty such as the money Ms. Jordan placed in the joint account with right of survivorship.\nEven if the 1976 documents were construed as attempts to create mutual or reciprocal wills with respect to the money in question, that would not support a conclusion that Ms. Jordan had made a contract not to revoke the provisions in her 1976 will.\nSince 1981, we have had a statute in effect providing as follows:\n(b)(1) However, a contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after June 17, 1981, can be established only by:\n(A) Provisions of a will stating material provisions of the contract; or\n(B) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or\n(C) A writing signed by the decedent evidencing the contract.\n(2) The execution of a reciprocal or mutual will does not create a presumption of a contract not to revoke a will.\nArk. Code Ann. \u00a7 28-24-101 (1987) (emphasis added). While the statute obviously does not apply in this case, it amounts, at least in part (b)(2), to a codification of the prior law that does govern here.\nIn Barksdale v. Carr, 235 Ark. 578, 361 S.W.2d 550 (1962), a husband and wife had made reciprocal wills, each conveying all of his or her estate to the other with a provision for dividing the estate of the survivor equally among six children \u2014 three from his former marriage and three from her former marriage. Mr. Carr died, and Ms. Carr then revoked her will and conveyed property to her children contrary to the terms of the will she had revoked. Mr. Carr\u2019s children sued Ms. Carr\u2019s children, claiming that Ms. Carr\u2019s will was irrevocable. We held that the evidence was insufficient to support the claim of a contract not to revoke. We declined to consider evidence of statements Mr. Carr had made prior to his death on the ground that \u201cone party to an alleged contract cannot bind the other party by declarations made in the absence of the other party.\u201d 235 Ark. at 583, 361 S.W.2d at 553. We noted that the wills said nothing about a contract not to revoke and that the mere fact that the wills had been reciprocal was not enough for us to infer such a contract. We concluded that a party seeking to prove a contract not to revoke a will must do so by \u201cclear, cogent, and convincing evidence.\u201d 235 Ark. at 586, 361 S.W.2d at 555. We noted that such a contract is like a contract to make a will. When there is an allegation of a contract to make a will, the standard requiring clear, cogent, and convincing evidence has consistently been applied. See, e.g., Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978); Kelley v. Pipkin, 268 Ark. 1009, 598 S.W.2d 102 (Ark. App. 1980). In the Barksdale case, we quoted Justice Millwee\u2019s opinion in Janes v. Rogers, supra, as follows:\nThe fact that the parties have concurrently executed separate wills, reciprocal in terms, is not sufficient, of itself, to show that the parties had entered into a contract to make such wills; but the terms of such wills afford some evidence of the contractual relation and, when read in connection with other evidence which tends to show the execution of the contract, may establish that fact. Page on Wills, Sec. 1710; Annotation on Joint, Mutual and Reciprocal Wills, 169 A.L.R. 9.\nBarksdale v. Carr, 235 Ark. at 584, 361 S.W.2d at 554.\nOne of the cases relied upon by Mr. Jordan\u2019s heirs in their brief and cited to us in oral argument in response to questions concerning the existence of a contract not to revoke is Smith v. Estate of Smith, 293 Ark. 32, 732 S.W.2d 154 (1987). In that case, a joint will consisting of a single document signed by husband and wife contained reciprocal provisions leaving property to the survivor and providing that upon the death of the survivor the property was to be divided equally among children and grandchildren. Ms. Smith died, and Mr. Smith petitioned for a construction of the will. He contended the will imposed no restriction on the sale, transfer, or other alienation of the property. We held that Mr. Smith could use the property for necessities, support, and maintenance but could not otherwise alienate it.\nThe difference between the Smith case and this one is that the Smiths\u2019 will contained no provision permitting disposition of any of the property at his or her \u201cdecision.\u201d More important, it provided, \u201cWe intend that this be a mutual will, which will is executed on July 27, 1985, and pursuant to an agreement between us to make mutual wills, each leaving his property to the survivor and each agreeing that the survivor leaves his property to the heirs listed. . . .\u201d Smith v. Estate of Smith, 293 Ark. at 33, 732 S.W.2d at 155 (emphasis added).\nThe 1976 wills of the Jordans do not contain a contract not to revoke. The \u201cother evidence\u201d is not \u201cclear, cogent, and convincing\u201d of the existence of such a contract. We affirm the Chancellor\u2019s refusal to impose a constructive trust.\nAffirmed.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Lawrence W. Fitting, P.A., for appellants.", "Bagby Law Firm, P.A., by: Philip Bagby, for appellee." ], "corrections": "", "head_matter": "Jack AVANCE, Jr., Robert Shelby, and Carmon Wigley v. Virginia R. RICHARDS\n97-134\n959 S.W.2d 396\nSupreme Court of Arkansas\nOpinion delivered January 15, 1998\nLawrence W. Fitting, P.A., for appellants.\nBagby Law Firm, P.A., by: Philip Bagby, for appellee." }, "file_name": "0032-01", "first_page_order": 54, "last_page_order": 63 }